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How Binding are the EU’s ‘Binding’ Renewables Targets?

Published online by Cambridge University Press:  09 August 2016

Angus JOHNSTON
Affiliation:
Faculty of Law, University of Oxford
Eva VAN DER MAREL
Affiliation:
Faculty of Law, University of Oxford

Abstract

The EU’s current renewable energy legislation sets a binding EU target for renewables as a share of overall energy consumption, allied with binding national targets for renewables as well. Yet the precise implications of having imposed such ‘mandatory’ binding targets have received little attention to date. This contribution examines the history and evolution of such targets, the context within which they must be pursued and applied, and some of the problems in and prospects for their enforcement and effectiveness. Comparisons are drawn with other areas of EU law where appropriate and some tentative lessons learned, as well as challenges still to be faced, are offered by way of conclusion.

Type
Articles
Copyright
© Centre for European Legal Studies, Faculty of Law, University of Cambridge 

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Footnotes

*

Eva van der Marel was Project Assistant (2 January 2013 to 31 October 2013) in the Faculty of Law, University of Oxford, and is currently a doctoral candidate at the University of Tromsø. The authors gratefully acknowledge support from the European Union, in the context of the ‘beyond2020’ project (Intelligent Energy Europe – Europe (IEE), ALTENER; Grant Agreement no IEE/10/437/S12.589880): this was important to the development of some of the later sections of this paper. Thanks are also due to the Oxford Martin Programme on Integrating Renewable Energy for its support in the completion of this paper. Sincere thanks are due to the participants at: the EPRG/CEEPR Conference in Berlin, 15–16 July 2010; the ‘Energy Transitions’ conference at the University of Eastern Finland in Joensuu, Finland (4–5 March 2013); presentations given at the University of Technology, Sydney (18 March 2013), the University of Sydney (20 March 2013), to the Irish Environmental Law Association, Trinity College Dublin (25 September 2013); and CELS Lunchtime Seminar, Cambridge (21 October 2015) for their comments and questions on various iterations of this paper. All errors and inaccuracies remain the authors’ responsibility.

References

1 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC [2009] OJ L140/16, Arts 1 and 3.

2 As Rec 14 to the Second Renewables Directive (ibid) puts it: ‘[t]he main purpose of mandatory national targets is to provide certainty for investors and to encourage continuous development of technologies which generate energy from all types of renewable sources …’. It is the movement towards the final achievement of the (binding) target over a significant period of time that renders this approach different from rules requiring the achievement of a minimum standard. Of course, it is possible to tighten such standards over time, which would bring the two approaches closer together, rendering a minimum standards approach akin to a series of binding interim trajectory targets, in the sense discussed in Part III, below.

3 See eg COM (2007) 1, An Energy Policy for Europe, White Paper.

4 COM (2014) 15, A policy framework for climate and energy in the period from 2020 to 2030, sections 2.2 and 4.4; and COM (2015) 80, Energy Union Package, p 15.

5 Often referred to as the principle of ‘national procedural autonomy’.

6 Under the line of cases which started with Francovich and Bonifaci v Italy, C-6 and 9/90, EU:C:1991:428, and developed by Brasserie du Pêcheur v Germany and R v Secretary of State for Transport ex p Factortame (No. 3), C-46/93 and C-48/93, EU:C:1996:79.

7 Although see the point about judicial review below (Part VI), especially with regard to consultation and procedure.

8 At best, they may: generate obligations upon decision-makers to take into account their obligation to achieve such targets (see, by parity of reasoning, the obligation of endeavour or effort of the UK’s Climate Change Act 2008 in R (Friends of the Earth) v Secretary of State for Energy and Climate Change [2009] EWCA Civ 810); and/or establish EU Law protection (eg by EU fundamental rights or general principles of law) through bringing a national situation within EU Law’s scope (eg Carpenter, C-60/00, EU:C:2002:434 (on the fundamental rights issue raised by Art 8 ECHR)).

9 Council Resolution of 16 September 1986 [1986] OJ C241/1; Council Recommendation of 9 June 1988 [1988] OJ L160/46. This interest had been generated by questions of energy supply security in the wake of the 1970s oil shocks, as well as in response to the 1986 advent of specific EEC environmental competence and concerns about carbon emissions.

10 Council Decision 93/500/EEC of 13 September 1993 [1993] OJ L235/41; see Annex I.

11 See the Council Decision of 3 March 1997 (at the 1990th Council Meeting). The target was eventually fixed at 8%.

12 COM (96) 576, Renewable Energy, Green Paper.

13 See, generally, Fouquet, D and Jones, C (eds), EU Energy Law, Volume III, Book Two: Renewable Energy in the Member States of the European Union – Parts 1 and 2 (Claeys & Casteels, 2010)Google Scholar.

14 Ibid p 29.

15 Ibid p 32.

16 Council Resolution of 27 June 1997 on renewable sources of energy [1997] OJ C210/1.

17 European Parliament Resolution on Renewable sources of energy COM (96) 576 [1997] OJ C 167/160.

18 Ibid.

19 COM (97) 599 final.

20 Ibid p 14; in itself, of course, a laudably reflexive technique. The question was whether it would also offer sufficiently strong incentives for renewable energy development and deployment.

21 Ibid p 10.

22 Ibid p 14.

23 European Parliament Resolution on COM (97) 599 final [1998] OJ C 210/215.

24 Council Resolution of 8 June 1998 on renewable sources of energy [1998] OJ C198/1.

25 COM (2000) 279 [2000] OJ C311 E/320.

26 See the subsequent Council Decision 2002/358/EC concerning the approval, on behalf of the EC, of the Kyoto Protocol to the UNFCC and the joint fulfilment of commitments thereunder [2002] OJ L130/1.

27 Opinion of the Economic and Social Committee on the Proposal for a RES-E Directive [2000] OJ C367/5, p 6.

28 One might wonder whether this was correct, or more of a shot fired in the politics of the subsidiarity game. Such political and diplomatic sparring may become even more important in light of the wording of Art 194(2) TFEU and its possible limits upon EU energy competence. See, further, Johnston, A and Marel, E van der, ‘ Ad Lucem? Interpreting the New EU Energy Provision, and in Particular the Meaning of Article 194(2) TFEU’ (2013) 22(5) European Energy and Environmental Law Review 181 Google Scholar.

29 See note 27 above, p 7.

30 European Parliament, Legislative Resolution on the proposal for a European Parliament and Council directive on the promotion of electricity from renewable energy sources in the internal electricity market (COM (2000) 279 – C5-0281/2000 – 2000/0116(COD)), 16 November 2000.

31 2318th Energy Council Meeting.

32 Commission, An Amended Proposal for a RES-E Directive, COM (2000) 884. It is unclear from the wording of the provision whether the Commission proposed that a mere inconsistency with a national climate change commitment could actually trigger a proposal for a mandatory target even if that target were consistent with the EU’s target for electricity from renewables.

33 European Parliament, Resolution on the Council common position for adopting a European Parliament and Council directive on the promotion of electricity produced from renewable energy sources in the internal electricity market (5583/1/2001 – C5-0133/2001 – 2000/0116(COD)), 4 July 2001.

34 Eg Joined Cases Land Oberösterreich and Austria v Commission, C-439/05 P and 454/05 P, EU:C:2007:510.

35 Directive 2003/30/EC [2003] OJ L123/42; now repealed, and replaced (and developed) by the relevant provisions of the Second Renewables Directive (see note 1, above), especially Arts 1–5 and 17–21. The EU’s biofuels law and policy has since been reconsidered; see the Commission’s proposal to reform Directives 98/70/EC and 2009/28/EC, COM (2012) 595, and the new rules amending both the Second Renewables Directive and the Fuel Quality Directive 98/70/EC [1998] OJ L350/58, embodied in Directive 2015/1513, [2015] OJ L239/1. Since these provisions largely concern indirect land use change, they will not be addressed in what follows here (although an indicative 0.5% target for advanced biofuels has been added; see the new Art 3(4)(e) Second Renewables Directive).

36 IP/06/862 (28 June 2006).

37 Commission, The Renewable Energy Progress Report, COM (2009) 192, referring in particular to Cyprus, Finland, Latvia, Malta, Romania and Slovenia in this regard.

38 Hodson, P et al (eds), EU Energy Law, Volume III, Book One: Renewable Energy Law and Policy in the European Union (Claeys & Casteels, 2010), paras 1.10–1.13Google Scholar.

39 With regard to renewables, see (eg) the Conclusions of the European Council meeting of 23–24 March 2006, Council Document 7775/1/06 REV10 (18 May 2006; http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/89013.pdf).

40 European Parliament Resolution on a strategy for biomass and biofuels of 14 December 2006, calling for a 25% overall renewables target [2006] OJ C317E/890.

41 COM (2006) 105, accompanied by a Staff Working Paper, SEC (2006) 1500.

42 An important and ongoing theme in EU energy law and policy; see the revised State aid rules and guidelines on renewables in the General Block Exemption Regulation 651/2014/EU [2014] OJ L187/1 (especially Arts 41–43 GBER, and the Commission’s Energy and Environmental Aid Guidelines 2014 [2014] OJ C200/1, sec 3.3). Many elements of these were foreshadowed in the Commission’s Staff Working Document, ‘Guidance for the design of renewables support schemes’, SWD (2013) 439 (5 November 2013).

43 COM (2007) 1, para 3.5.

44 COM (2006) 848, Renewable Energy Roadmap: Renewable energies in the 21 st century: building a more sustainable future; see also the accompanying Staff Working Paper, SEC (2006) 1719.

45 Eg at the high-level Energy Working Group organized by the Finnish Presidency of the Council in November 2006; see van Steen in Hodson et al (eds), see note 38, above, para. 3.8.

46 Presidency Conclusions, 2 May 2007, Doc 7724/1/07 Rev 1; Concl 1.

47 Drawing upon lessons learned from setting up the EU’s Emissions Trading System and its differential responsibilities for each Member State in contributing to an overall EU target of emissions reductions; see eg Weishaar, SE, Emissions Trading Design: A Critical Overview (Edward Elgar, 2014), pp 6772 Google Scholar.

48 For discussion of the methods investigated, and ultimately used, see Hodson et al (eds), note 38 above, paras 3.37–3.47 (van Steen). Because the approach adopted (focusing on a flat-rate increase in the renewables share of a Member State’s overall energy consumption, weighted according to GDP) might come at higher cost than an approach based upon a Member State’s renewables potential, measures were also included in the proposal to allow for virtual transfers between Member States; see, now, the statistical transfers regime under Art 6 of the Second Renewables Directive (discussed in Johnston, A and Block, G, EU Energy Law (Oxford University Press, 2012), 12.4712.52 Google Scholar).

49 Report A6-0287/2007 (25 September 2007).

50 COM (2008) 19 Proposal for a Directive of the European Parliament and of the Council on the promotion of the use of energy from renewable sources.

51 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC [2009] OJ L140/16.

52 For further details on the transport and biofuels provisions, see P Hodson in Hodson et al (eds), note 38 above, ch 7.

53 To date, the only quasi-example of this last technique involves an International Treaty (29 June 2011) between Sweden and Norway on a joint certificate scheme for renewables support (from 2012, due to end in 2035).

54 See E Kottasz in Hodson et al (eds), note 38 above, ch 5, for discussion.

55 Ibid.

56 See, in particular, the text of Art 4(1): ‘national renewable energy action plans shall set out Member States’ national targets for the share of energy from renewable sources consumed in transport, electricity and heating and cooling in 2020, taking into account the effects of other policy measures relating to energy efficiency on final consumption of energy, and adequate measures to be taken to achieve those national overall targets, including co-operation between local, regional and national authorities, planned statistical transfers or joint projects, national policies to develop existing biomass resources and mobilise new biomass resources for different uses, and the measures to be taken to fulfil the requirements of Art 13 to 19’.

57 [2009] OJ L182/33.

58 Hodson et al (eds), note 38 above, paras 3.54–3.55.

59 Rec 22, 25 and 27, in particular, make direct reference to the need for public support and national support schemes to ensure renewables development and deployment.

60 Now amended and codified as Directive 2009/147/EC.

61 Commission v Spain, C-355/90, EU:C:1993:331.

62 Eg the presence of species of birds listed in Annex I; and the presence of a ‘wetland’, especially one of ‘international importance’ (Art 4(2)). In practice the Court has often relied on conclusions presented by ‘objective’ associations and institutions to assert its findings. For example, the Inventory of Important Bird Areas in the European Community (IBA), whilst not legally binding, was held to contain the ‘scientific evidence making it possible to assess whether a Member State has complied with its obligation to classify as SPAs the most suitable territories in number and size for conservation of the protected species’ (Commission v Netherlands, C-3/96, EU:C:1998:238, [69] and [70]).

63 Commission v France, C-374/98, EU:C:2000:670. The case is of particular interest because the ECJ held that an unclassified SPA which should have been so classified remains subject to the conservation obligations set out in Art 4(4) of the Birds Directive. This is in spite of the more relaxed conservation regime of classified sites which had been introduced after the judgment in Santoña Marshes by Article 6 of Habitats Directive. Contrary to Art 4(4) of the Birds Directive, the ‘new’ regime allows a plan or project which has an adverse effect on an SPA or SAC to be permitted for reasons of ‘overriding public interest’. The Court’s reasoning in Basses Corbières thus prevents a defaulting Member State from using the leeway introduced by the Habitats Directive and as such circumvent the conservation obligations with regard to an ‘unclassified SPA’. In other words, Basses Corbières has created an ‘extra’ incentive for Member States to designate a habitat as an SPA where, on the basis of ornithological criteria, there is sufficient reason to do so.

64 See note 61 above, para 14.

65 Something which was apparently much needed, given the slow implementation of the Directive after its adoption. At the time Santoña Marshes was decided, the Commission had reported that, in its opinion, twice as many habitats should have been designated by the Member States as areas of special protection (Commission, Eighth Report on monitoring application of Community law [1991] OJ C338/1, p 220; Krämer, L, EU Environmental Law, 7th ed (Sweet and Maxwell, 2012), pp 511 Google Scholar.

66 See note 42, above.

67 Which remained in force until 6 January 2014.

68 Art 13(1) IED does not indicate the distribution of the actors involved in the exchange process. Information on participation in the information exchange process is no longer routinely made available by the European IPPC Bureau because of database protection rules. Existing data shows that Member States, the Commission and industry dominate – with only a marginal presence of environmental interest groups and research institutes (M Lee, The Industrial Emissions Directive (16 November 2012) doi: 10.2139/ssrn.2176720, pp 9–10); for further analysis of the composition of Technical Working Groups, see Lange, B, Implementing EU Pollution Control: Law and Integration (Cambridge University Press, 2008)CrossRefGoogle Scholar.

69 Lee, ibid.

70 Lange, B, ‘The EU Directive on industrial emissions: squaring the circle of integrated, harmonised and ambitious technology standards?’ (2011) 13 Environmental Law Review 199 CrossRefGoogle Scholar; Lee, M, ‘The Ambiguity of Multi-Level Governance and (De-)harmonisation in EU Environmental Law’, (2013) 15 Cambridge Yearbook of European Legal Studies 357 CrossRefGoogle Scholar.

71 Emmot, N et al, ‘Policy Review: IPPC and the Sevilla Process’ (2000) 10 European Environment 204 3.0.CO;2-X>CrossRefGoogle Scholar, p 205; Lee, note 68 above, p 13.

72 As pointed out by Lee, above at note 68, who also concludes that ‘national regulators still have a crucial and difficult evaluative role under the IED, and monitoring and enforcement is still likely to be challenging. The likelihood is that this hard law revision will only have the intended effect if further collaborative and learning techniques are used alongside it’ (p 14).

73 See note 42, above.

74 Johnston, A et al, ‘The Proposed New EU Renewables Directive: Interpretation, Problems and Prospects’ (2008) 17 (3) European Energy and Environmental Law Review 128 Google Scholar.

75 ITRE Report on the Proposal for a Directive of the European Parliament and of the Council on the promotion of the use of energy from renewable sources, 26 September 2008.

76 Specifically, Germany, the UK and Poland, which presented their alternative: ‘Non-paper: Proposal by Germany, Poland and the UK on an Alternative Renewable Flexibility Mechanism’ (June 2008) (https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CDQQFjAA&url=http%3A%2F%2Fwww.endsreport.com%2Fdocs%2F20080723a.doc&ei=vEwzUomcLtPs0gWyz4DoDQ&usg=AFQjCNG1yfuufUbpWGknRi8TZYaG5Xf1MQ&sig2=8Rfdohv11ElzI9aRnk9_rA) discussed in Johnston, A and Block, G, EU Energy Law (Oxford University Press, 2012)Google Scholar, para 12.40ff.

77 European Parliament Legislative Resolution of 17 December 2008 on the ‘Proposal for a Directive of the European Parliament and of the Council on the promotion of the use of energy from renewable sources’ (COM (2008) 19 – C6-46/3008-2008/16(COD)) [2010] C45E/132. An earlier version of the flexibility mechanisms can be found in the joint proposal by Germany, Poland and the UK (ibid).

78 Art 2(j), and see Rec 52.

79 Especially in the Common Agricultural Policy; see the discussion in Johnston et al (note 74 above), pp 144–145.

80 ITRE Report, note 75 above, p 48, Amendments 22, 80, 102 and 131.

81 Note 75 above, p 49, Justification for Amendments 22 and 53.

82 In itself, this is not surprising, given expectations of time-lag in starting up a push towards renewables deployment and the associated challenges of planning clearance, investment, construction, etc), provided that such moves are underway so that an exponential (rather than linear) improvement in overall renewables share could be expected as 2020 approached.

83 And, indeed, elsewhere in EU law: see, eg, the discussion concerning air traffic control and the Common Fisheries Policy in Part III.D, below.

84 Directive 2003/87/EC [2003] OJ L275/32 (as subsequently amended by Directive 2009/29/EC [2009] OJ L140/63).

85 Commission Decisions C(2007) 1295, Poland – NAP, of 26 March 2007 and Estonia – NAP, of 4 May 2007.

86 Poland v Commission, T-183/07, EU:T:2009:350 and Estonia v Commission, T-263/07, EU:T:2009:351. The Court rejected the Commission’s appeals against these judgments in Commission v Poland, C504/09, EU:C:2012:178 and Commission v Estonia, C-505/09, EU:C:2012:179 (29 March 2012).

87 Ibid, 82–133. See, now, the amended EU ETS after Directive 2009/29/EC ([2009] OJ L140/63), which provides for an EU-level setting of the number of allowances available, plus stronger Commission scrutiny and control over national actions in this area: the Court, in its judgments of 29 March 2012 (ibid), specifically referred to the need for this new legislation to bolster its decision to reject the Commission’s appeals.

88 Regulation 994/2010/EU [2010] OJ L295/1.

89 See Johnston and Block, note 48 above, 10.66.

90 See note 86 above. Investors and markets reacted rather strongly to the uncertainty created by the CFI and CJEU judgments for overall allowance amounts in circulation, with a carbon price drop of between EUR 3 and EUR 5 per tonne being experienced.

91 Matra SA v Commission, C-225/91, EU:C:1993:239, para 42.

92 [2010] OJ L201/1.

93 Art 14(2).

94 After a Commission recommendation that changes be made; Art 13.

95 Art 14.

96 Arts 9(3) and 18.

97 Art 18.

98 [2013] OJ L345/22.

99 COM (2011) 425 final, Proposal for a Regulation of the European Parliament and of the Council on the Common Fisheries Policy.

100 Art 17(1), emphasis added.

101 European Parliament legislative resolution of 6 February 2013 on the proposal for a regulation of the European Parliament and of the Council on the Common Fisheries Policy (COM (2011)0425) (A7-0008/2013) [2016] OJ C24/134.

102 International Council for the Exploration of the Sea.

103 Scientific, Technical and Ecological Committee for Fisheries (for details, see http://ec.europa.eu/fisheries/partners/stecf/index_en.htm).

104 Council agreement on a general approach on the basic provisions of the CFP, 26 February 2013 (http://register.consilium.europa.eu/pdf/en/12/st11/st11322-re01.en12.pdf).

105 Though this remains subject to a second reading by the EP and, naturally, its subsequent adoption.

106 When exactly will this power will apply? Rec 67: ‘[t]he power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission in respect of the adoption of conservation measures accompanying certain environmental obligations by Member States [etc]’; and Rec 68: ‘[i]n order to ensure uniform conditions for the implementation of the provisions of this Regulation in respect of temporary measures to alleviate a serious threat to the conservation of marine biological resources, of the entry-exit scheme in fleet management and transmission of data for the Union fishing fleet register, implementing powers should be conferred on the Commission’.

107 And the nature of that power can be either delegated or implementing: Art 18(3).

108 In accordance with Regulation 182/2011/EU [2011] OJ L55/13 (28 February 2011), which makes the Commission subject to scrutiny from the Parliament and the Council which, in the case of delegated acts, will have a set period of time during which they can veto the Commission’s proposal by a majority and a qualified majority, respectively (Art 290 TFEU). In the case of implementing acts, which follow a procedure much like the old comitology procedure, control will mainly lie with Member State representatives (rather than the Member States in the institutionalised form: ie the Council).

109 Johnston et al, note 74, above.

110 Which one might conceive of as a measure of the ‘significance’ of any such impact (or perhaps as a form of de minimis test); for a more in-depth discussion, see Johnston and van der Marel, note 28 above, especially sec 2.3.1.

111 See Battle, C et al, Review report on interactions between RES-E support instruments and electricity markets (Report D5.1 of the ‘beyond2020’ project, October 2012) http://www.res-policy-beyond2020.eu/pdffinal/Interactions%20between%20RES-E%20support%20and%20electricity%20markets%20(beyond2020%20-%20D5-1).pd)Google Scholar; and Frias, P et al, Assessment Report on the impacts of RES policy design options on future electricity markets (Report D5.2 of the ‘beyond2020’ project, October 2013) http://www.res-policy-beyond2020.eu/pdffinal/Assessment%20report%20on%20the%20impacts%20on%20future%20electricity%20markets%20(beyond2020%20-%20D5-2).pdf Google Scholar.

112 This seems to have been confirmed by the outcome of the recent Court judgments in Ålands Vindkraft, C-573/12, EU:C:2014:2037 and Joined Cases Essent Belgium v VREG, C-204-208/12, EU:C:2014:2192. See Steinbach, A and Brückmann, R, ‘Renewable Energy and the Free Movement of Goods’ (2015) 27 JEL 1 CrossRefGoogle Scholar and Fouquet, D and Nysten, JV, ‘Renewable Energy Support and Free Movement of Goods: The European Court of Justice Continues its Line’ (2015) 4 (4) European Energy Journal 34 Google Scholar, for helpful discussion.

113 [2009] OJ L140/114; for a summary, see Johnston and Block, note 48 above, paras 13.12–13.58. For detailed discussion, see: IPCC, Carbon Capture and Storage (Cambridge University Press, 2005)Google ScholarPubMed; Havercroft, I et al, Carbon Capture and Storage: Emerging Legal and Regulatory Issues (Hart Publishing, 2011)Google Scholar; Roggenkamp, MM and Woerman, M (eds), Legal Design of Carbon Capture and Storage: Developments in the Netherlands from an International and EU Perspective (Intersentia, 2009)Google Scholar; and M Holwerda, EU Regulation of Cross-Border Carbon Capture and Storage: Legal issues under the Directive on the Geological Storage of CO 2 (Intersentia, 2014).

115 Draft Opinion of the Committee on Industry, Research and Energy for the Committee on the Environment, Public Health and Food Safety on ‘Implementation Report 2013: Developing and applying CCS technology in Europe’, 18 July 2013, 2013/2079 (INI). NB the default position of the EEAG 2014 (note 42, above) is also one of technology-neutrality for RES-E support, unless the Member State proposing technology targeting can justify the need to do so for the relevant technology or technologies involved.

116 Smith, M, Centralised Enforcement, Legitimacy and Good Governance in the EU, (Routledge, 2010), pp 8687 Google Scholar.

117 See, inter alia, Commission v France, C-166/97, EU:C:1999:149, para 18.

118 For a more detailed discussion on the types of breach by Member States of EU law which have been brought before the Court see Craig, PP and de Búrca, G, EU Law: Text, Cases and Materials, 6th ed (Oxford University Press, 2015), p 444ff CrossRefGoogle Scholar.

119 COM (2013) 175, Renewable energy progress report, p 13.

120 COM (2015) 293, Renewable energy progress report.

121 Wennerås, P, The Enforcement of EC Environmental Law (Oxford University Press, 2007), p 252 CrossRefGoogle Scholar.

122 Ibid, p 253, note 14.

123 In reference to our previous discussion on the Birds Directive, with regard to which the Court established ‘objective’ (ornithological) criteria on which the Commission could rely to assess compliance with Art 4, it is obvious that such ‘objective’ criteria would here too significantly lighten the Commission’s load.

124 Experiences in other energy-related areas bear out similar difficulties; the evolution of national allocation plans and their criteria under the EU ETS provides one example of a steady shift of definitions, details and decision-making to the EU level, while the evolution of the specific legislation on gas supply security offers another (on which see Johnston and Block, note 48 above, paras 10.29–10.66, and see COM (2016) 52, Proposal for Regulation of the European Parliament and of the Council concerning measures to safeguard the security of gas supply and repealing Regulation (EU) No 994/2010).

125 Eg France v UK, 141/78, EU:C:1979:225, on unilateral fisheries conservation measures; Spain v UK, C-145/04, EU:C:2006:543, on UK rules on European elections in Gibraltar.

126 Note that Art 122(1) TFEU concerning severe supply difficulties in, notably, the sphere of energy and Arts 346–348 TFEU might also be relied upon by a Member State attempting to justify measures in exceptional situations of public security, but it seems highly unlikely that these provisions would be significant for enforcement of mandatory renewables targets.

127 Krämer, note 65 above, pp 12–34.

128 Craig and de Búrca, note 118 above, p 450ff.

129 Commission v Belgium, 301/81, EU:C:1983:51, para 8.

130 Commission v Italy, 280/83, EU:C:1984:211, para 4, and subsequent case-law.

131 See Commission v Italy, 33/69, EU:C:1970:14, para 16, in which even a bomb attack had not created a situation which made is so excessively difficult that non-compliance could be justified.

132 Stallworthy, M, ‘Prospects for the UK’s national approach to climate law-making’, in M Peeters et al (eds), Climate Law in EU Member States: Towards National Legislation for Climate Protection (Edward Elgar, 2012)Google Scholar, ch 6, p 124.

133 Note also the trend towards the use of the Energy Charter Treaty and bilateral investment treaties by investors in an attempt to hold Member States to their announced support schemes, even in the face of national (often constitutional) law that has been held to allow changes in policies and law. This is a huge topic and beyond the scope of the present contribution, but its practical significance should be noted in the enforcement context as offering another potential (and potentially highly controversial) avenue for claimants.

134 See, eg, Breyer v Department for Energy and Climate Change [2014] EWHC 2257 (QB), upheld on almost all points in Department for Energy and Climate Change v Breyer [2015] EWCA Civ 408, [2015] 1 WLR 4559. For discussion of the litigation in this area up to, but not including, the most recent Breyer judgment, see Johnston, A, ‘Recent Renewables Litigation in the UK: Some Interesting Cases’ (2015) 13 (3) Oil, Gas & Energy Law Intelligence Google Scholar.

135 See note 119, above.

136 As agreed under Directive 2001/77/EC. These Member States were: Austria, Cyprus, Czech Republic, Greece, Finland, France, Italy, Luxembourg, Malta, Poland, Romania, Sweden, Slovenia, Slovakia, and the UK.

137 As agreed under Directive 2003/30/EC. These Member States were: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Greece, Spain, Finland, Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, Netherlands, Portugal, Romania, Slovenia, and the UK.

138 See note 120, above.

139 See note 119, above, p 8.

140 Commission, Consultation Questionnaire (Web-Based): Preparation of a new renewable energy directive for the period after 2020 (18 November 2015) https://ec.europa.eu/energy/sites/ener/files/documents/RED%20II%20Public%20Consultation_0.pdf.

141 See Preparation of a new Renewable Energy Directive for the period after 2020 https://ec.europa.eu/energy/en/consultations/preparation-new-renewable-energy-directive-period-after-2020.

142 See Public consultation on the Renewable Energy Directive for the period after 2020: Analysis of stakeholder views https://ec.europa.eu/energy/sites/ener/files/documents/Summary%20RED%20II%20Consultation.pdf.